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2016 DIGILAW 1000 (MP)

Sapna Saxena v. State of M. P.

2016-11-07

ROHIT ARYA

body2016
ORDER 1. This writ petition under Article 226/227 of the Constitution of India at the instance of Smt. Sapna Saxena appointed as Aanganwadi Worker, Village Karvas, Tahsil Gohad, District Bhind upon selection, challenging the order passed by the Collector dated 12.5.2016 (Annexure P-1) allowing application dated 15.10.2015 (Annexure P-8) filed by the respondent No.4, Ms.Sunita Upadhyay to be arrayed as party under Order I rule 10 CPC in an appeal filed by the respondent No.5, Mata Prasad on 20.7.2012 questioning her appointment order dated 12.6.2012 (Annexure P-2). 2. Facts necessary and relevant for disposal of this writ petition are to the effect that the State Government has framed a policy for the purpose of selection and appointment of Aanganwadi Worker/Assistant. The amended policy dated 10.7.2007 (Annexure R/4-1) is on record which inter alia provides for an appeal under clause C-6 and the same reads as under: ^^l&6%&vihy vk¡xuokM+h dk;ZdrkZ@lgkf;dk dh fu;qfDr@lsok ls i`Fkd~ djus ds fdlh Hkh izdj.k esa fookn gksus dh fLFkfr esa vkosfndk }kjk vafre lwph izdk'ku ds fnukad ls 10 fnol ds Hkhrj dyDVj ds le{k vihy dh tk ldsxhA dyDVj }kjk 15 fnol ds Hkhrj vihy dk fujkdj.k fd;k tk,xkA lacaf/kr i{k }kjk ;fn pkgsa rks f}rh; vihy izFke vihy fujkdj.k ls 10 fnol ds Hkhrj laHkkxh; vk;qDr ds le{k dj ldsaxs ,oa laHkkxh; vk;qDr }kjk vihy dk fujkdj.k vf/kdre 15 fnol esa fd;k tk ldsxkA** 3. The controversy involved in this writ petition relates to (i) maintainability of appeal at the instance of respondent No.5, Mata Prasad; (ii) allow ability of the application under Order 1 rule 10 CPC filed by the respondent No.4 and (iii) pregnability of the impugned order dated 12.5.2016 (Annexure P-1). 4. Learned counsel for the petitioner contends that a careful reading of the appeal provision unambiguously suggests that only applicants in the matter of appointment or termination of Aanganwadi Worker/Assistant can file appeal within 10 days from the date of publication of the final select list before the Collector and the said authority is obliged to decide the appeal within 15 days' therefrom. As such, none other than the applicant in the process of selection for appointment can file the appeal. The respondent No.5, Mata Prasad is admittedly not one of the applicants in the selection process, therefore, the appeal filed by him on 20.7.2012 was not maintainable. As such, none other than the applicant in the process of selection for appointment can file the appeal. The respondent No.5, Mata Prasad is admittedly not one of the applicants in the selection process, therefore, the appeal filed by him on 20.7.2012 was not maintainable. Respondent No.4 though one of the applicants for appointment as Aanganwadi Worker has not chosen to file the appeal within the stipulated period of ten days instead filed an application under Order 1 rule 10 CPC as late as on 15.10.2015 in the appeal filed by the respondent No.5. Under the circumstances, such an application could not have been entertained by the Collector at such a belated stage; more so, when hearing of the appeal on admission itself was deferred since 5.10.2012 till passing of the impugned order for no justifiable reason. Hence, the application filed on 15.10.2015 was wrongly entertained and by a cryptic impugned order, the same has been allowed without assigning any reason or justification by the appellate authority. As such, impleadment of respondent No.4 in the appellate proceedings was wholly contrary to the provision contained under clause C-6 of the policy. 5. The Collector being the appellate authority was obliged to consider the application so filed with care and caution and in accordance with law. Once the appeal itself was not maintainable filed at the instance of the respondents No.5 and 3 there being no plausible explanation offered by the respondent No.4 for having not filled the appeal within the specified period as provided for in the policy, in all fairness, the Collector ought not to have allowed the application for impleadment during pendency of the appeal for about three years. It is submitted that the impugned order has been passed in a hot haste and slip shod manner only to avoid dismissal of the appeal as the same is not maintainable at the instance of respondent No.5. Hence, the impugned order so passed is in excess of authority and jurisdiction and tantamounts to colourable exercise of power by the Collector/appellate authority. With the aforesaid contentions, learned counsel submits that the impugned order cannot be sustained in the eyes of law as there is patent illegality and jurisdictional error crept therein. 6. Hence, the impugned order so passed is in excess of authority and jurisdiction and tantamounts to colourable exercise of power by the Collector/appellate authority. With the aforesaid contentions, learned counsel submits that the impugned order cannot be sustained in the eyes of law as there is patent illegality and jurisdictional error crept therein. 6. On the contrary, learned counsel for the respondent No.4 contends that against finalization of name of the petitioner on the post of Aanganwadi Worker, the respondent No.4 has filed objection and as the objection was not being considered, she had approached the Court as well and thereafter the objection was considered and decided. Therefore, the respondent No.4 has always shown promptitude in assailing the selection and appointment of the petitioner. Moreover, the provision contained under Order 1 rule 10 CPC does not admit of any period of time for consideration of the application by the Court. Therefore, though the application for impleadment is filed after three years of pendency of the appeal, no exception to the impugned order can be taken allowing the application. Once the respondent No.4 is added as party, the question of maintainability of the appeal does not survive and the appeal has to be heard on merits. 7. Learned counsel for the respondent No.5 contends that the respondent No.5, Mata Prasad since is bona fide resident of the village has locus standi to maintain the appeal as the appointment of the petitioner on the post of Aanganwadi Worker suffers from number of irregularities. 8. Heard learned counsel for the parties. 9. The entire controversy revolves around the provision of appeal under the policy. There is no cavil of doubt that the selection and appointment as Aanganwadi Worker/Assistant shall be only from amongst the female candidates. The appeal provision quoted above, in the opinion of this Court, vividly provides for only the applicants to question the appointment/selection of Aangawadi Worker/Assistant in appellate proceedings and none else and that too within the specific period of ten days and the same has to be decided by the appellate authority within fifteen days. Therefore, once the policy has been framed by the State Government in the matter relating to selection and appointment of Aanganwadi Worker/Assistant, the said policy is required to be adhered to. Therefore, once the policy has been framed by the State Government in the matter relating to selection and appointment of Aanganwadi Worker/Assistant, the said policy is required to be adhered to. If the statutory policy provide for procedure and manner in which the appeal has to be filed and decided, the same has to be followed and cannot take recourse to a procedure unknown to the rules as the law is well settled in that behalf that if an act is to be done in a particular manner under the statutory provision, the same has to be done in accordance with that procedure and not otherwise (Referred to: State of U.P. v. Singhara Singh [ AIR 1964 SC 358 )]. Accordingly, in the opinion of this Court, only the female applicant who has applied for appointment to the post of Aanganwadi Worker/Assistant can maintain the appeal and that too within the specified period under the policy. In the instant case, admittedly, the respondent No.5, Mata Prasad is not a female and also not an applicant, therefore, the appeal is held to be not maintainable, at his instance. 10. As regards the application under Order 1 rule 10 CPC filed by the respondent No.4 and allowed by the impugned order is concerned, there is no satisfactory explanation forthcoming as to why and under what circumstances the respondent No.4 had chosen not to file the appeal against the appointment order of the petitioner dated 12.6.2012 and that too the application has been filed almost after three years during pendency of the appeal on 15.10.2015 to be arrayed as party. Further, the Collector/appellate authority, in all fairness, ought to have considered the application after meeting out the objections so raised by the petitioner thereto. That has not been done. In the backdrop of the fact that the appeal was pending consideration on the question of admission since 20.7.2012 till the date of passing the impugned order, the Collector/appellate authority as rightly putforth by the learned counsel for the petitioner has acted in hot haste and slip shod manner while passing the impugned order. Hence, learned counsel for the petitioner is right in contending that in excess of the authority and jurisdiction in colourable exercise of the powers, the appellate authority only to obviate the circumstances of non-maintainability of the appeal, has passed the impugned order adding the respondent No.4 as party. Hence, learned counsel for the petitioner is right in contending that in excess of the authority and jurisdiction in colourable exercise of the powers, the appellate authority only to obviate the circumstances of non-maintainability of the appeal, has passed the impugned order adding the respondent No.4 as party. As a matter of fact, once the appeal is held to be not maintainable at the instance of respondent No.5, no application under Order 1 rule 10 CPC could have been entertained at the instance of respondent No.4. Therefore, there is substantial force in the submission advanced by learned counsel for the petitioner. Accordingly, in the opinion of this Court, the Collector/appellate authority has exceeded the authority and jurisdiction while allowing the application filed by the respondent No.4. Hence, the impugned order desreves to be and is hereby set aside. 11. Consequently, the writ petition succeeds and is hereby allowed.